ASIC Corporations (Definition of Approved Foreign Market) Instrument 2017/669 [F2017L01126] and ASIC Corporations (Amendment) Instrument 2017/6 [F2017L01128]-Concluded matters [2017] AUSStaCSDLM 407 (15 November 2017)

• Chapter 2
• Concluded matters

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Chapter 2

Concluded matters

This chapter sets out matters which have been concluded following the receipt of additional information from ministers.

Correspondence relating to these matters is available on the committee's website.^[1]

Instrument	ASIC Corporations (Definition of Approved Foreign Market) Instrument 2017/669 [F2017L01126] ASIC Corporations (Amendment) Instrument 2017/6 [F2017L01128]
Purpose	Operate together to apply a single, consistent definition of 'approved foreign market' in 14 ASIC legislative instruments
Authorising legislation	Corporations Act 2001
Portfolio	Treasury
Disallowance	15 sitting days after tabling (tabled Senate 6 September 2017) Notice of motion to disallow currently must be given by 28 November 2017
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor 13 of 2017

The committee previously commented on two matters as follows:

Consultation

Section 17 of the Legislation Act 2003 directs a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken in relation to a proposed instrument. The explanatory statement (ES) which must accompany an instrument is required to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken (paragraphs 15J(2)(d) and (e)).

The committee noted that the (shared) ES for these instruments provides no information regarding consultation.

The committee's expectations in this regard are set out in the guideline on consultation published on the committee's website.^[2]

The committee requested the minister's advice as to the nature of consultation

(if any) that was undertaken on the instrument; and requested that the ES be updated in accordance with the requirements of the Legislation Act 2003.

The ASIC Corporations (Definition of Approved Foreign Market) Instrument 2017/669 (the definition instrument) modifies the application of eight specified chapters or Parts of the Corporations Act 2001 (the Act) to applicable ASIC legislative instruments. The instrument relies on separate provisions of the Act for authority

to modify the application of each chapter or Part.

In this regard, the committee noted that the definition instrument and the ES identify only seven of the eight relevant authorities on which the definition instrument relies. The definition instrument modifies the application of Part 7.7 of the Act to the applicable legislative instruments, but does not cite subsection 951B(1) of the Act, which authorises it to do so.

The committee drew the above drafting error to the minister's attention.

Minister's response

The Minister for Revenue and Financial Services advised:

On 24 August 2017, ASIC made two legislative instruments that together amend 14 of ASIC's legislative instruments to ensure they have a single, consistent definition of an 'approved foreign market'. The instruments also add two new markets (Euronext Brussels and Euronext Lisbon) to the definition of an approved foreign market and update the names of a number of the markets in the definition that have merged or changed name.
The substantive effect of the instruments is to add two markets to ASIC's list of an approved foreign market. The addition of these two markets is consistent with ASIC's policy in Regulatory Guide 72: Foreign securities disclosure relief, which explains at paragraphs 56 to 58 that ASIC may approve additional foreign markets and sets out the criteria ASIC will take into account for that purpose. The other changes made by the instruments are technical in nature. Consequently, ASIC determined that these changes would not benefit from public consultation.
ASIC intends to lodge a replacement explanatory statement outlining its approach to consultation for the legislative instruments.
The Committee also noted that the explanatory statement to the instruments does not cite section 951B of the Corporations Act 2001
(the Act) as the source of authority for ASIC to modify the application of Part 7.7 of the Act. The reference to Part 7.7 in paragraph 5 of the ASIC Corporations (Definition of Approved Foreign Market) Instrument 2017/669 is an error, as none of the instruments amended by instrument 2017/669 uses section 951B of the Act as a source of power. ASIC will correct this drafting error in a subsequent amending instrument.

Committee's response

The committee thanks the minister for her response and notes the minister's undertaking to register a replacement ES outlining ASIC's approach to consultation for the instruments.

The committee also notes the minister's undertaking to address the drafting error in a subsequent amendment to the relevant instrument.

The committee has concluded its examination of the instruments.

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^[1] See www.aph.gov.au/regords_monitor.

^[2] Regulations and Ordinances Committee, Guideline on consultation, http://www.aph.gov. au/Parliamentary_Business/Committees/Senate/Regulations_and_Ordinances/Guidelines/ consultation.